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  • Vahid Bazzar

Caster Semenya Case in the CAS and Human Rights

This article is authored by Vahid Bazzar, Ph.D. graduate in international law fromAllameh Tabataba’i University, Iran.

Ms. Mokgadi Caster Semenya is a female athlete of South African nationality. The gold medal at the 2012 and 2016 Olympic games and the gold medal at the 2009, 2011, and 2017 IAAF world championships are just some of her honors. She was barred from participating in the world championships under the Eligibility Regulations for the Female Classification. According to the Regulations, which came into force on 1st November 2018, a female athlete who has circulating testosterone levels in blood of five (5) nmol/L or above is barred from participating in some world championships. Such debarment cant be lifted if the athlete reduces her blood testosterone level to below five (5) nmol/L for a continuous period of at least six months (e.g., by use of hormonal contraceptives), and maintain her blood testosterone level below five (5) nmol/L continuously (i.e., whether she is in competition or out of competition) for so long as she wishes to remain eligible to compete at International Competitions in the female category. Of course, these women may still compete without any restriction in the male category in any event at any level of competition, or they may compete in the female category in any event at non-international competitions, provided that they will not be eligible to set in the female category in any event at non-international competitions. To justify the Regulations, IAAF says that without the protection of restricted entry to that class, women athletes would be at risk of being denied the right to compete and succeed at the highest levels (CAS award, para. 456). The Regulations specify that due to the strength and power enjoyed by men over women from puberty onwards (due in large part to men's much higher levels of circulating testosterone), it is generally accepted that competition between male and female athletes would not be fair and meaningful, and the purpose of the Regulations is to ensure fair and meaningful competition in the sport of athletics and ensure that success is determined by talent, dedication, hard work, and other values and characteristics that the sport embodies and celebrates. To challenge the Regulations, Ms. Semenya first took recourse in the Court of Arbitration for Sport (CAS), which is the dedicated court for settling disputes arising from the Regulations (Eligibility Regulations for the Female Classification 2018, para. 5.2), and then appealed to the Swiss Federal Court. The rejection of his application in these two courts led her to raise her case in the European Court of Human Rights (ECHR) (see here, here, and here). In this post, we intend to explain and analyze the CAS award in the Caster Semenya case from the perspective of human rights.

CAS Award of 30 April 2019 in Caster Semenya Case

On 18 June 2018, Ms. Semenya, filed an application against IAAF in the CAS, claiming that the Eligibility Regulations for Female Classification discriminate against female athletes on the basis of sex, since no equivalent requirements are applied to male athletes. The Regulations restrict the ability of some female athletes to compete based solely on the natural or genetic traits which they have possessed since birth and over which they have no control. She argues that the Regulations are not necessary in order to preserve fair competition within the female category, because success in elite competitive sport is the product of both genetic and environmental factors and the world celebrates the genetic differences that make athletes such as Usain Bolt, Michael Phelps and Serena Williams great. The CAS in its 2015 award in the Chand case also upheld the fact that there are many variables, including physical and biological variables, that legitimately affect athletic performance (para. 527).

However, unlike Ms. Dutee Chand, who can take CAS's award in 2015 to suspend the Hyperandrogenism Regulations which barred her from competing in athletics, Ms. Semenya did not succeed in the CAS. The CAS, in its award of 30 April 2019, acknowledged that the Eligibility Regulations for the Female Classification are prima facie discriminatory on grounds of legal sex. However, it is common ground that a rule that imposes a differential treatment on the basis of a particular protected characteristic is valid and lawful if it is a necessary, reasonable and proportionate means of attaining a legitimate objective. Since those biological factors do not correspond perfectly with legal sex in every case, the Panel accepted the IAAF's submission that it is sometimes necessary to devise eligibility conditions that are not exclusively based on legal sex, and in this case, IAAF had adequately demonstrated that the Regulations were necessary or appropriate to ensure fair competition in female athletics. In addition, female athletes who do not enjoy the significant performance advantage caused by exposure to levels of circulating testosterone in the adult male range do not have to compete against female athletes who do enjoy that performance advantage.

Human Rights and CAS Award in Caster Semenya Case

The CAS addresses merely the right to non-discrimination and does not consider the many human rights norms and standards that have been ignored by the Regulations, including the right to the highest attainable standard of physical and mental health, the right to sexual and reproductive health, the right to work and to the enjoyment of just and favourable conditions of work, the right to privacy, the right to freedom from torture or other cruel, inhuman or degrading treatment or punishment, and full respect for the dignity, bodily integrity and bodily autonomy of the person (see A/HRC/RES/40/5). Although General Comment No. 18 declares that if the criteria for the differentiation of treatment are reasonable and objective, and if the aim is to achieve a legitimate purpose under the Covenant, such differentiation will not constitute discrimination, it is difficult to accept the necessity and reasonableness of the Regulations. The right to non-discrimination is one of the essential elements of human dignity, as enshrined in most international human rights instruments, including the Universal Declaration of Human Rights (Article 7), the International Covenant on Civil and Political Rights (Article 26), the International Covenant on Economic, Social and Cultural Rights (Article 2(2)), and the Convention against Discrimination against Women. The right to non-discrimination in sport is also enshrined in the Olympic Charter (Fundamental Principles of Olympism, para. 4) and the IAAF Statute (para. 4.1(j)). The right to non-discrimination has a prominent position in human rights. The fact that the proclamation of most human rights begins with "anyone ..." demonstrates that the right to non-discrimination is rooted within them. Further, the right to non-discrimination must be observed, even in cases where some human rights are allowed to be derogated. For example, according to Article 4(1) of the International Covenant on Civil and Political Rights, in times of public emergency which threaten the life of the nation, the derogation of human rights must not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Therefore, the right to non-discrimination should only be ignored in exceptional cases, and high testosterone levels in blood in some female athletes do not seem to have created such a necessity that the Regulations are treated a reasonable response to it.

Ms. Semenya was born a girl and has legal and social identities as a woman. She has female sexual organs and she has never been intersex. Indeed, many athletes subject to the Regulations might never be aware of their natural traits were it not for the Regulations. Given their legal and social identity as women, the Regulations that exclude them from the female category call into question their very sense of self and of human dignity and will be questioning their sex or gender identity. Next point is that natural physical traits, including high testosterone levels in blood, are innate traits that deprive a related woman of their human rights (see here). Therefore, it cannot be compared to doping where individuals use certain substances in order to prevail on others, and countering them through anti-doping laws is treated as an urgent social necessity.

Another point is that although the Regulations specify that no athlete will be forced to undergo any assessment and/or treatment under these Regulations, these athletes are required to meet the conditions for participating in competitions. Also, the number of female athletes subject to the Regulations is not large enough to hold separate competitions for them, and their only option to participate in the female category is to agree to the medically unnecessary procedures for lowering testosterone levels, including the hormonal treatment which has adverse side effects including diuretic effects that cause excessive thirst, urination and electrolyte imbalances, disruption of carbohydrate metabolism (such as glucose intolerance or insulin resistance), headaches, fatigue, nausea, hot flashes and liver toxicity. The imposition of humiliating treatment to female athletes is illegal discrimination and patriarchal negation of women’s autonomy in decision-making leads to violation of women’s rights to health, privacy, reproductive and sexual self-determination, physical integrity and even to life (see A/HRC/32/44). The right to bodily integrity also refers to the right to control all aspects of one’s health, to respect bodily autonomy and integrity and to decide freely in matters relating to one’s sexuality and reproduction, free of discrimination, coercion and violence (see here). The Special Rapporteur of the Human Rights Council on the right of individuals to enjoy the highest standard of physical and mental health states that sporting organizations must implement policies in accordance with human rights norms and refrain from introducing policies that force, coerce or otherwise pressure women athletes into undergoing unnecessary, irreversible and harmful medical procedures in order to participate as women in competitive sports (see A/HRC/32/33).

Concluding Remarks

The CAS, in its award of 30 April 2019 in the Caster Semenya case acknowledges that the Regulations ignore some human rights. The CAS explicitly acknowledges the violation of the right to non-discrimination by the Regulations and declares that it is common ground that a rule that imposes differential treatment on the basis of a particular protected characteristic is valid and lawful if it is a necessary, reasonable and proportionate means of attaining a legitimate objective. However, it is clear from paragraph 589 of the award that the non-withdrawal of the Regulations which violate some human rights is in order to protect some other human rights: "these Regulations reflect a rational resolution of conflicting human rights in the Caster Semenya case." Of course, in a letter which is jointly prepared by the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, and the Working Group on the issue of discrimination against women in law and in practice in 2018, a different conclusion has been reached. It has been urged that the IAAF withdraw its Regulations. However, the ECHR, which is currently on the case, will certainly pay special attention to human rights violations. A noteworthy point is that it is not possible to violate the CAS award by the ECHR, because the CAS is not a national court. Nevertheless, the ECHR may ascertain the international responsibility of the Swiss government for the Judgment of the Swiss Federal Tribunal, which upheld the CAS award.

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